From the federal legal implications of marijuana possession to do-it-yourself home-grow operations, Amendment 64 discussions are cropping up all over Colorado.

Nov. 7, 2012

Written by

Robert Allen

Marijuana legalized in Colorado

Voters in Colorado have legalized the recreational use of marijuana, and while the new constitutional amendment has no immediate impact, state and local officials are scrambling to grapple with Tuesday’s unprecedented change to the state constitution. Once vote totals are finalized in the in the next month, anyone 21 and older can legally possess up to an ounce of pot. But exactly how the new amendment will fit into the legal landscape — pot remains illegal at the federal level — is up in the air. The amendment envisions the creation of special stores where people can buy marijuana and sets a July 1, 2013, deadline for creating those rules. But people could begin legally growing and smoking their pot by about Dec. 6, when the Colorado Secretary of State is to certify election results. Unofficial election results on Amendment 64:

On Tuesday, Colorado voters took an unprecedented step to legalize adult marijuana possession, cultivation and sales. In the wake of Amendment 64’s passage, burning questions are being asked about how this will affect daily life. What are in-home privacy concerns? How does this define communities? How will Colorado ultimately be seen on the national stage? We spoke with public officials and marijuana experts, examined the legal text and reviewed marijuana’s history in and beyond the state to clear some of the post-election haze.

I thought federal law made marijuana illegal. Does this change that?

No. Federal law supersedes the new state law. That means federal agents could bring charges against anyone in Colorado with pot.

But there's a caveat: Federal officials in Colorado don't have the resources to prosecute people for having a just little bit of pot, said University of Colorado law Prof. Richard Collins, who specializes in constitutional law and Colorado government. He said Amendment 64 was written to keep users under the radar.

"In practice, the feds never prosecute for one ounce, even though they can," Collins said. "The U.S. Attorney doesn't have the capacity to police small amounts of marijuana."

Will local police enforce federal law against people possessing marijuana?

No. Larimer County Sheriff Justin Smith, who opposed Amendment 64, said local agencies wouldn’t be able to go after marijuana users in compliance with state law.

“We’re not federal agents,” he said. “We can arrest people if they’re wanted on warrants on federal crimes, but unless we’re involved in a specific case ... where (a deputy is) cross-commissioned as a federal agent, we don’t directly enforce federal law.”

He also said Amendment 64 complicates the law on a number of fronts — from current investigations and pending cases to evidence custody issues. Regarding the latter, it’s illegal under federal law for policing agencies to distribute drugs, likely even if that means returning confiscated marijuana, he said.

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Are these new laws being phased in? How?

Nothing changes until the vote is certified, which could take about a month. Possession and small-scale growing operations would become effective immediately.

The law mandates that the state adopt a regulatory framework by July 2013 to allow for businesses to sell marijuana for recreation. The first state-approved marijuana stores could be open by about January 2014.

These dates are subject to possible injunction from the federal government because of the state’s contradiction with federal laws making marijuana illegal.

Denver attorney Sean McAllister, who helped frame the Amendment 64 language, said the re-election of the president and the abundance of Democrats in the state legislature bodes well for the law.

“Obama is now a term-limited president who doesn’t have to run for office again,” McAllister said. “I believe that he will not come down and shut down the industry in Colorado. He will defer to the state.”

Larimer County District Attorney-elect Cliff Riedel said the U.S. Attorney could seek federal intervention through a federal judge.

“It’s a federalism issue,” he said. “I’m assuming that, in essence, you can’t have a state legalize something that the feds say is illegal.”

Collins said it’s likely the feds will adopt a similar policy to Amendment 64 as they did for the state's medical marijuana laws.

Collins predicted the state and federal governments will agree to a "passive accommodation" that sees people with small amounts of marijuana ignored by federal agents, as is usually the case today.

Federal officials say they’re examining the voter-approved initiative but have no plans to change their enforcement strategy.

“The Department of Justice’s enforcement of the Controlled Substances Act remains unchanged. In enacting the Controlled Substances Act, Congress determined that marijuana is a Schedule I controlled substance. We are reviewing the ballot initiative and have no additional comment at this time,” Jeff Dorschner, a spokesman for the U.S. Attorney’s Office in Denver said in a statement.

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Colorado’s attorney general calls the voter-approved Amendment 64 “very bad public policy” but committed to working with state lawmakers and regulators to implement it.

In a statement, Colorado Attorney General John Suthers warned that the amendment sets up a conflict with federal laws, which still ban the use and possession of marijuana.

U.S. Attorney General Eric Holder in 2009 said federal officials are committed to enforcing the federal Controlled Substances Act, which bans marijuana. Federal officials have previously used that law to prosecute Coloradans, even if they claimed protection under the state's medical-marijuana laws.

“Accordingly, I call upon the United States Department of Justice to make known its intentions regarding prosecution of activities sanctioned by Amendment 64 (particularly large wholesale grow operations) as soon as possible in order to assist state regulators and the citizens of Colorado in making decisions about the implementation of Amendment 64,” Suthers said.

How much marijuana can an individual have under Amendment 64?

Anyone over 21 could legally possess less than an ounce. The law also allows an individual to grow six marijuana plants, three of which could be flowering at a time in a private, enclosed and secure facility — which could be a home or apartment. The one ounce limit applies to possession anywhere outside the facility.

People would be allowed to “keep the remaining harvest, which will end up being more than an ounce,” McAllister said.

Do you have to be a Colorado resident to legally possess marijuana here?

No.

“It is absolutely not tied to residency at all,” McAllister said.

But much like with with alcohol and fireworks, the laws of neighboring states apply as soon as a person crosses the border — whether that person is a Coloradan or resident of that state. When and if the marijuana stores open to the public, tourists would have just as much a right to buy pot as residents.

What does it mean for Colorado to be the first state to legalize marijuana?

“Last night is a signal to any movement for social justice that change is possible,” McAllister said. “Drug policy and marijuana is a civil-rights issue, and it is a civil-rights victory for millions of marijuana users.”

He said medical-marijuana laws showed Colorado voters that the drug could be regulated, and the state is now poised to be a leading example of how the long-underground industry can be regulated legally.

Larimer County Sheriff Justin Smith said marijuana legalization is a step toward legalizing cocaine and methamphetamine that started in 2000, with medical marijuana’s voter approval.

“We put so much effort as a society into telling them to stop smoking tobacco,” he said. “Now, we’ve come up with another substance to smoke. It just doesn’t make sense to me.”

Voters’ decision means the drug-awareness advocacy group TEAM Fort Collins is bracing for a surge in marijuana use in the city. Researcher Dawn Nannini said studies have repeatedly shown that legalization decreases the perception of harm, which leads to increased access and use.

“It’s our role now to prepare the community and especially young people for what we expect the consequences will be,” she said.

McAllister said the new laws help keep marijuana away from children and that the vote reflects a lack of credibility from opponents who said the “sky is going to fall” when medical-marijuana began proliferating.

“I think the reason for a lot of news on doomsday predictions from law enforcement is they don’t like the fact that they’ve lost a tool here, lost some power,” he said. “This is going to have broad-ranging impacts, for example, on the ability of police to get into homes. You won’t be able to just get a search warrant anymore if you smell marijuana in somebody’s house.”

What about people who’ve previously been convicted of marijuana possession?

The new laws aren’t retroactive: If someone was previously convicted and sentenced for marijuana possession or cultivation, those penalties will stick.

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“You deal with the law that was in effect in the time you committed your offense is the general rule,” Larimer County District Attorney-elect Cliff Riedel said. “I don’t anticipate people being able to attack their convictions.”

McAllister said he anticipates expansion of the ability to seal previous marijuana violations from one’s criminal record, although “many marijuana violations already can be sealed.”

So the new laws ‘regulate marijuana like alcohol.’ Will there be marijuana lounges or bars?

Public use is prohibited, but that might not stop a business — perhaps a hotel, restaurant or lounge — from opening a place for marijuana use.

“It’s sort of uncharted territory,” Riedel said, adding that one can only speculate what will happen.

When a new law is passed, it’s normal for there to be differing interpretations that are hashed out through the court system. During alcohol prohibition, states tried to opt out but were blocked by federal courts, he said.

The law allows anyone over 21 to have up to six marijuana plants. Is there about to be a boom in home-grow operations?

Not likely; it’s much more expensive and difficult than — for example — home brewing, said Dave Watson, a medical marijuana grower who formerly owned a Fort Collins dispensary.

“There’s a lot that goes into growing,” he said. “If it was easy, a lot more people would already be doing it.”

A new setup costs about $1,200 to $1,500 in the first 90 days, including costs for lights, ventilation, ballasts, electricity, irrigation, seeds, soil, pots, nutrients and more. Under Amendment 64, it also must be grown in an enclosed, locked private space.

And people can’t sell what they’ve grown, as all recreational marijuana sales are to be through state-regulated stores.

People approved for medical-marijuana possession under state law can grow their own, but most go through a caregiver system.

How does this affect medical marijuana?

Not at all, according to the Amendment 64 language. But the new laws could make medical dispensaries obsolete.

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On paper, the state system is to remain fully intact. Watson said he plans to reopen his Fort Collins dispensary Kind Care of Colorado once it’s approved through the city and state.

Customer service and product quality will be better and prices will be lower through medical sources, he said. “You could compare it to a microbrew; New Belgium versus Budweiser.”

Larimer County Sheriff Justin Smith said dispensaries “are going to be pretty much financial losers in this, because the door’s going to open.”

The existing annual state application costs and doctor’s prognosis involved in obtaining a medical-marijuana license could discourage renewals.

Since Question 301 passed, will people go back and try to make medical marijuana dispensaries illegal again here?

Fort Collins had 21 dispensaries before a previous election caused them all to close by February 2012. Tuesday’s election reverses that decision and brings more regulations.

Smith said he doesn’t expect another push to close them, particularly since the state passed Amendment 64. The two measures were separate questions on the ballot.

“The state in general has said it’s allowed for recreational use,” Smith said.

It’s unclear what regulations will arise from Amendment 64. Watson said he anticipates getting involved with industrial hemp, which also was legalized under the legislation. He may even try to open a recreational-marijuana store some day.

“I want my corporation to do everything: industrial, medicinal and the wholesaling part of it,” he said. “I want to do all facets of it.”